MOHD ISHLAM Vs. STATE OF U P

JUDGEMENT

(1.) SINCE both the criminal appeals arise out of the same judgment, hence, these are being disposed of by a common judgment.

(2.) THE aforesaid two criminal appeals have been preferred challenging the judgment and order dated 05.04.2007 whereby the appellants were convicted in Criminal Case No.5 of 2005, passed by Additional Sessions Judge/FTC -VII, Lucknow, under Sections 8/20 N.D.P.S. Act, and were sentenced to undergo rigorous imprisonment for a period of ten years and also with fine of Rs.1,00,000/ - each with default stipulation of two years imprisonment.

(3.) THE case of the prosecution, in brief, was that on 07.02.2005 while the police party which was on patrol duty, got a secret information that two persons on a Hero Honda motorcycle are coming from the side of Juggaur and they shall go towards Chinhat. They are in possession of large quantity of incriminating articles. He further told that the such persons are indulging in such type of activities for a long time, in case an early action is taken then the same may be recovered from their possession. Relying upon this information, an effort was made to procure public witnesses but none agreed for the same. Thereafter, police party waited for the suspected person. After sometime a motorcycle was seen coming from the side of Juggaur. Informer, after confirming that these are the suspected persons, went away from there and thereafter the police party asked them to stop but instead they made an effort to turn the motorcycle and escape. At 22.30 hours the police party apprehended the accused persons and they were in possession of plastic bag, the person who was driving the motorcycle disclosed his name as Ishlam and the other person who was sitting on the motorcycle holding plastic bag told his name to be Kayamuddin and they told that they are in possession of illegal contraband. Thereafter, they were told by the police party that if they so wants then their search may be taken before a Gazetted Officer or a Magistrate but both the accused persons declined the said offer. Hence, the search was taken by the police party and on opening the plastic bag, four packets, wrapped in newspapers and polythene tied with thick thread (sutli), were recovered. The police party smelled the contents of the said packets and found that the same was smelling like Gaanja. Its weight was about 20 kgs. One sample was prepared out from all the four bundles and after sealing the same the police party came to the police station and a case was registered, on the basis of the recovery memo which was prepared on the spot. The case of the accused persons was that they have been falsely implicated in this case. The appellant Ishlam's case was that he was picked up by the police while he was present at his house and his motorcycle was also taken to the police station and the appellant Kayamuddin was picked up at the time while he was coming back after his work and both of them were falsely implicated. However, no defence evidence was adduced on their behalf.